Karnauchow v State of NSW, NSW Department of Communities and Justice

NCAT Appeal Panel|2025-02-03|Before: Blake AM

Introduction

In the CSNSW Submissions, CSNSW has submitted that the 16 December 2024 Application should be dismissed pursuant to s 55(1)(b) of the NCAT Act. This submission is misconceived as s 55(1)(b) of the NCAT Act confers power on the Tribunal to dismiss proceedings, and not an interlocutory application. It follows that it is unnecessary to deal with this submission.
Before considering this issue, I have set out the applicable provisions of the NCAT Act relied on by Mr Karnauchow and otherwise relevant to the determination of the 16 December 2024 Application, and summarised the evidence and submissions of the parties. Each of the 16 December 2024 Application and the CSNSW Submissions contain a mixture of evidence and submissions.

The applicable provisions of the NCAT Act

Part 1 (ss 1-6) contains preliminary provisions. Section 3 sets out the objects of the NCAT Act, and relevantly provides: 3 Objects of Act The objects of this Act are - … (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and …
Section 4 contains definitions, and relevantly provides: 4 Definitions (1) In this Act - … ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. … interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. …

The 16 December 2024 Application

In the 16 December 2024 Application, Mr Karnauchow has given evidence that some Correctional Officers will not grant computer access during a lock-in without an official notice or order. Between 1 January 2024 and 5 December 2024 there were 92 days of lock-ins during which he was unable to access the only computer that is available for out-of-cell access. He was allowed 10 days access to a computer during lock-ins.

The Peek Affidavit

In the Peek Affidavit at [9]-[13], Mr Peek gave the following evidence with respect to the Custodial Operations Policy and Procedures (COPP): "9 COPP 8.3 - Inmate Computers determines that an inmate may be provided access to computers to participate in education and employment programs and to view or prepare legal materials, …. In summary, computers available for use by inmates are identified as: a) Green computers - connected to the Offender Access to Computer ("OAC") network and are for education, programs and employment purposes. b) Blue computers - non-networked and are for the purpose of viewing and preparing legal documents. 10 In accordance with COPP 8.3, SCCC provides additional green computer access to inmates when no programs are running in the education room. Supervision is required due to the nature of SCCC being a correctional centre with inmates with different security classification. There is no hardware provision in the area to provide access to the OAC intranet. 11 In accordance with COPP 8.3, 2.2 notes that blue computers allow inmates to access their legal material that is supplied by the prosecutorial body. 12 In accordance with COPP 8.3, 4.3 notes that documents prepared on blue computers by inmates for their legal purposes are not permitted to be printed by staff. However, documents prepared on the OAC green computers may be printed by the library at a cost to the inmate. 13 In accordance with COPP 8.3, 6.1 notes that under no circumstances are inmates to be in the possession of an external storage device outside the work or education facility. Inmates found to be in possession of such devices will be charged with a correctional centre offence. External storage devices are prohibited in a correctional centre noting their potential to hold contraband and explicit materials."

The DCJ Disability Inclusion Action Plan

CSNSW has the DCJ Disability Inclusion Action Plan which is an overarching policy relating to inmates with a disability. This policy states that once a disability has been identified a referral is made to Statewide Disability Services, a multidisciplinary team that manages the assessment, support, and referral of inmates with a disability. Adjustments and referrals are considered in line with advice from Statewide Disability Services once a disability is confirmed by Justice Health and Forensic Mental Health Network (Justice Health). Any requests for disability aids are to be made to his Corrective Services case manager or through referrals by Justice Health.

The CSNSW Submissions

The CSNSW Submissions relevantly includes the following evidence: 1. it would not oppose Mr Karnauchow making a request for a reasonable adjustment through the DCJ Disability Inclusion Action Plan. Any such request would be considered in line with current policy and procedures; 2. Mr Karnauchow has received additional access, above that of other inmates, to a green computer; 3. Mr Karnauchow receives on average 35 hours of computer time per week, with the unit routine being modified to allow him more computer access. It has also made additional modifications to allow access to be allocated on lock-in days, where feasible and if staff numbers allow. All computer access is documented in its records; 4. in relation to the access of websites: 1. Mr Karnauchow has access to an online legal information portal when using the green computer. This includes links to: 1. all Australian/State legislation (searchable, regularly updated); and 2. general information; 1. in addition to the online legal portal, Mr Karnauchow has access to hard copy legal information in the correctional centre libraries and has the ability to request copies of documents through the library request forms; 2. in the area of discrimination, inmates can access the latest version of the 'The Law Handbook' chapter on Discrimination; 3. it provides access to the 'tool kit' of general legal information provided by the State Library in Correctional Centre libraries as well as on the portal. 4. Mr Karnauchow has access to all Australian and State legislation on Timebase, which is loaded and updated onto the server/green computers; 5. case law is not accessible via the portal for security reasons, due to previous breaches by inmates in custody, to ensure good order. However, Mr Karnauchow make requests for copies via the library.

The 16 December 2024 Application

In the 16 December 2024 Application, Mr Karnauchow has submitted that additional out-of-cell computer access would facilitate him complying with a quick process "in these proceedings".

The 15 January 2025 Karnauchow letter

In the 15 January 2025 Karnauchow letter, Mr Karnauchow has referred to the following authorities with respect to "Tribunals powers with procedure, and the ability to control procedures beyond the powers of the Appellant": 1. Montreal Street Railway Company v Normandin [1917] AC 170 at 175; 2. Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955; 3. Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17 at [34]; 4. Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 at [76]; 5. Broadhurst v Nicols [1902] QWN 21; 6. De Mestre v Hunter Pty Ltd (1952) 77 WN (NSW) 143 at 146.

The CSNSW Submissions

In the CSNSW Submissions, CSNSW has made the following submissions: 1. the 16 December 2024 Application is not an opportunity for Mr Karnauchow to bring a fresh complaint nor an opportunity to make fresh submissions against it. Should he wish to make further complaints against it, then he should make those complaints through the appropriate channels and not via alternative process in the Tribunal. The 16 December 2024 Application is a tool for delay and an abuse of process; 2. it relies on Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 (Liristis) and Clark v Commissioner for Corrective Services [2016] NSWCA 186 (Clark).

Consideration

While it is not entirely clear, I am satisfied on the basis of the expression "in these proceedings" in paragraph 2 of section 4 that the 16 December 2024 Application relates to the preparation of submissions for the appeal of Mr Karnauchow against the 19 December 2023 Decision and not his proposed appeal against his conviction.
The submission of Mr Karnauchow that the Tribunal has jurisdiction to make an order about computer access in custody under s 29(2)(a) and (b) of the NCAT Act is misconceived as the jurisdiction of the Tribunal relating to the internal appeal of Mr Karnauchow against the 19 December 2023 Decision is conferred by s 32(1)(a) and (2) of the NCAT Act.
Neither Mr Karnauchow nor CSNSW have addressed the question of whether the order sought would result in an ancillary decision or an interlocutory decision which the Tribunal has jurisdiction to make in the appeal pursuant to s 32(1) and (2)(a) of the NCAT Act.
I note that in Hamzy v Commissioner of Corrective Services [2024] NSWSC 1090 (Hamzy) at [51] Harrison CJ at CL recognised the common law right of a prisoner to unimpeded access to the courts of the State, as part of the basic right to a fair trial. I am satisfied that the common law right of unimpeded access to the courts of the State, as part of the basic right to a fair trial applies by analogy to the Tribunal. This right is recognised by s 3(c) of the NCAT Act and regulated by 38(5)(c) of the NCAT Act.
I accept the evidence of Mr Peek in the Peek Affidavit at [9]-[13] as to the security concerns underlying access to computers in COPP.
In Liristis, the respondent was on remand in Long Bay Correctional Complex, facing a number of charges of sexual assault. The charges were listed for hearing in the District Court. The primary judge Schmidt J in proceedings commenced by the respondent against the appellant made orders including that respondent forthwith be given access to his printer/scanner and laptop in custody and that he be permitted to use that equipment in the preparation and conduct of his case, both in custody prior to the commencement of the hearing and in the District Court, during the course of the trial. The key issue on appeal was whether the Court had jurisdiction to make the orders, and in particular whether the orders were supportable as an exercise of the Supreme Court's jurisdiction. The New South Wales Court of Appeal by majority (Beazley P and Basten JA, White JA dissenting) allowed the appeal and set aside the orders made by the primary judge.
In Liristis, Beazley P at [32] and [34] relevantly observed: "[32] The concept of "abuse of process", and the attendant powers of a superior court, are not unlimited. …" {34] Thus whilst it is well-established that superior Courts can act to stay proceedings in an inferior Court in order to prevent an "abuse of process", the issue in the present case is whether the inherent and/or s 23 jurisdiction of a superior Court extends, not only to staying proceedings in an inferior Court, but to making some kind of positive or mandatory order on parties or non-parties to criminal proceedings in order to prevent an "abuse of process".
In Liristis, Basten JA at [61], [63], [69] and [104] relevantly observed: "[61] … Despite the unqualified language in which it is expressed, the jurisdiction conferred by s 23 is by no means unlimited. …" "[63] Secondly, it is necessary to understand the statutory context in which s 23 now operates. … nor, generally speaking, does it permit an order that a government officer exercise a discretionary power in a particular way. …" "[69] … Any rights in issue here are qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment." "[104] The proposition that the Supreme Court has power to order a gaoler to take steps to provide a prisoner with resources to run his criminal defence goes a step further than any authority to which the Court was directed and is untenable. Importantly, no authority suggested that it was a proper function of the Supreme Court to weigh the demands of a prisoner for access to equipment which was not permitted in the gaol according to ordinary operating procedures against the gaoler's concern for security."
In Clark, the applicant was a prisoner currently serving a lengthy sentence for offences against young persons. He sought relief in relation to the conditions of his custody and, primarily, with those aspects which he said impeded him in the pursuit of various legal proceedings then on foot. Those matters included the refusal to permit him to have a laptop computer. The primary judge Hidden J dismissed judicial review proceedings. The applicant sought leave to appeal from that judgment. The New South Wales Court of Appeal (Basten JA, Simpson JA and Emmett AJA) granted leave to appeal and dismissed the appeal.
In Clark, Basten JA at [12]-[14] and [31] relevantly observed: "[12] While there is no reason to deny the power of a trial judge to give directions and make orders with respect to the conditions of custody of a prisoner involved in litigation for the purpose of ensuring a fair trial, that jurisdiction should be seen as providing a safety net, rather than a generally appropriate mechanism for control of the conditions of custody. [13] There are pragmatic reasons supporting that conclusion. First, if there are no proceedings on foot, there will be no designated trial judge; secondly, even where proceedings have been commenced, the State courts do not operate a "docket system" with each case assigned to one judge. Thirdly, where, as here, a prisoner has various proceedings on foot, each requiring attendance on a different timetable and probably involving different elements of complexity, there may be no trial judge who has an overview of the situation. [14] A fourth, equally pragmatic, reason is that it will generally be a distraction for a judge seeking to give directions or make orders with respect to the conduct of the trial, to have to consider a satellite application with respect to the conditions of imprisonment. There have been a number of similar applications in recent years which, in the interests of the efficient management of the prisons, should be disposed of on a consistent basis and not by reference to the exigencies of particular litigation or trial management directions." "[31] … That is the importance for the good order of the prison in not having arbitrary arrangements, pursuant to which some prisoners may be perceived to receive preferential treatment. …"
In Hamzy, the plaintiff was an inmate housed in the High Risk Management Correctional Centre at Goulburn. In the proceedings against the defendant, he was seeking declaratory relief concerning the validity and application of provisions of the Crimes (Administration of Sentences) Regulation 2014 (NSW). At a hearing for the separate determination of certain questions the plaintiff sought an order that he be provided with a laptop with word processing capability. The defendant opposed the making of the orders, and relied on Liristis at [32], [34], [61], [63], [69] and [104] and Clark at [12]-[14] and [31].
In Hamzy at [39]-[52], Harrison CJ at CL made the following findings and orders in the disposition of the application: "Disposition [39] Mr Hamzy's reference to equality of arms is a suitable and relevant starting point from which to consider these largely, although not completely, competing submissions. A comprehensive reference to this concept can be found in the judgment of Bell J in Ragg v Magistrates Court (Vic) and Another (2008) 179 A Crim R 568; [2008] VSC 1 at [46]-[48]: "[46] This is the equality of arms principle, which applies to both civil and criminal trials, as stated by the European Court of Human Rights in Foucher v France: 'The Court reiterates … that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case in conditions that do not place him at a disadvantage vis-à-vis his opponent.' [47] Here is the more elaborate statement of the principle given by Stefania Negri in the International Criminal Law Review, which also emphasises it is one of comprehensive application: 'The right to a fair trial entails protecting the "equality of arms" principle, an inherent element of the due process of law in both civil and criminal proceedings. Strict compliance with this principle is required at all stages of the proceedings in order to afford both parties (especially the weaker litigant) a reasonable opportunity to present their case under conditions of equality. Indeed, at the core of the concept of "equality of arms", as elaborated in domestic and international case law, is the idea that both parties should be treated in a manner ensuring that they have a procedurally equal position to make their case during the whole course of the trial. Fundamental procedural safe-guards aimed at securing such equality are guaranteed in most domestic legal orders, enshrined in human rights treaties and other relevant international instruments, and set out in the Statutes and Rules of the major international courts and tribunals.' [48] The equality of arms principle - which was probably taken from the civil law tradition - was originally stated by the European Court of Human Rights set up under the European Convention on Human Rights. The European Convention - to use its abbreviated name - was entered into in 1950 in the aftermath of the Second World War. Article 6(1) and (3) contain provisions relating to the equal right to a fair trial before an independent and impartial court or tribunal that are of fundamental importance. The provisions come from the common law and civil legal traditions of those civilised countries that respected and followed the principle of a fair trial and the rules necessary to produce one." [40] His Honour continued at [50]: "The application of the equality of arms principle in the criminal law takes account of the prosecutorial setting. Usually, the prosecution enters the trial with two advantages: having superior resources and having conducted the investigation that led to the charges being brought. That gives rise to the issue of disclosure - voluntary and enforced - of material by the prosecution to the defence…". [41] Although the present proceedings are civil, not criminal, and although no issue of disclosure arises directly, Mr Hamzy maintains that he is in litigation in which the Commissioner as the opposing party maintains significant control in the custodial setting over what he can and cannot do. That control, in Mr Hamzy's submission, needs to be taken into account in assessing the extent to which it might actually or potentially impede or hobble the processes of this Court. [42] It is also important to consider the setting in 2024 in which the current dispute arises. One would hope that the days are, or should be, long gone in which prisoners were restricted to pen and paper, or the vicissitudes of the postal service, when communicating or corresponding with the Court. As long ago as 2008, Lasry J made reference to the changes in R v Rich (No 2) (2008) 184 A Crim R 161; [2008] VSC 141. For example, his Honour said this at [47]-[48]: "[47] What might have been regarded as fair in an earlier age when technology was much less advanced, might now not be so regarded. Thus the concept of 'equality in arms', which I take to refer to the importance of the equality of both sides in the opportunity to present their case, no doubt has a different meaning in this age of computer technology. [48] The fundamental facilities required for a person in the position of the accused are those which will enable him to have access to the evidentiary material to be led against him at his trial in all its forms, coupled with the time and facilities to give proper instructions about that material. It also involves him having timely access to any material which he considers as exculpatory so that it can be provided to his lawyers accompanied by all the necessary narrative and explanation from him. Further, with respect, I agree with and adopt the observation of Maxwell P concerning what his Honour termed the 'irreducible minimum'." [43] That same year, his Honour Kirby J in Muir v The Queen [2004] HCA 21; (2008) 78 ALJR 780 at [25] said this: "[25] Prisoners are human beings. In most cases, they are also citizens of this country, 'subjects of the Queen' and 'electors' under the Constitution. They should, so far as the law can allow, ordinarily have the same rights as all other persons before this Court. They have lost their liberty whilst they are in prison. However, so far as I am concerned, they have not lost their human dignity or their right to equality before the law." [44] Five years later, Kaye J in Brazel v Westin [2013] VSC 527 set out at [21]-[23] what he considered to be the principles to be applied in circumstances such as the present: "Legal principles [21] The plaintiff, in effect, is seeking relief from this Court, by way of interlocutory injunction, to enable him to present his case to court. The principles, which are applicable to such an application, have been referred to in a number of recent authorities. They may be summarised, briefly, as follows: (1) Each individual has an established common law right to unimpeded access to the courts of the State, as part of the basic right to a fair trial. (2) A prisoner, such as the plaintiff, has the same civil rights and privileges as any other citizen, including the right of access to the courts. That right inheres in each individual in both civil and criminal litigation. (3) That right may be infringed where, in the case of a prisoner, the prison authorities take steps which effectively prevent the prisoner properly presenting his or her case to court. (4) The court will only intervene to protect that right if the action, or inaction, of the prison authority, would have the effect of preventing a person from effectively accessing the court. As Lasry J stated in R v Rich (Ruling No 2): 'In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay.' [22] In considering an application such as the present, it is important to bear in mind that the question is not whether the court agrees, or disagrees, with the action, or lack of action, by the particular prison authority. Rather, and importantly, the question is whether the action, or inaction, of the defendants and the prison authority, would preclude the plaintiff from having effective access to the court in this case. The reasons for that approach are set out, in a slightly different context by Kyrou J in Knight v Deputy Commissioner, Corrections Victoria, as follows: 'There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive - acting through Corrections Victoria - rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners - including education, welfare and security - that inform the framework within which decisions affecting prisoners are made.' [23] In similar terms, in Fyfe v State of South Australia, Curtin J [sic, Martin J] stated: 'There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the court's jurisdiction must be carefully observed and the court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of the court's surroundings'." [45] The legal principles are, therefore, not in dispute. [46] In my opinion, Mr Hamzy's access to this Court is relevantly denied for as long as he is not provided with a laptop with word processing capability. I accept without reservation that it is not a proper function of this Court to weigh Mr Hamzy's need for access to equipment which is currently not permitted in the gaol according to ordinary operating procedures against the Commissioner's concern for security. I also accept that it is no part of the role or function of this Court to second-guess the Commissioner's considerable and unchallenged expertise about security within the gaol. That is so not merely in general terms concerning the running of the gaol but also in the light of the Commissioner's particular information about specific prisoners, including Mr Hamzy, which may raise novel or unique concerns that need to be understood and addressed. [47] But there must surely come a time in the third decade of the third millennium when a party to complex litigation in this Court can no longer be expected to conduct it without continuous or at least significant regular access to a laptop with internal storage facilities and word processing capabilities. The evidence in this case reveals that prisoners are not permitted to have computers or laptops with internet access. Mr Hamzy does not ask for that and the Commissioners' position is entirely understandable. The evidence also reveals that prisoners' access to USB devices is very carefully monitored as they are easy to conceal upon the person and USBs containing prohibited or security sensitive material is correspondingly difficult to monitor. However, as far as I am able to determine, laptops are not similarly difficult to monitor. [48] The Commissioner uncontroversially acknowledges that Mr Hamzy is entitled to have access to all of his legal materials, which are presently contained in hard copy documents stored somewhat primitively in a series of plastic tubs. That position is unremarkable both having regard to the Commissioner's position as Mr Hamzy's gaoler as well as to his role as a party to this litigation. The Commissioner has identified, and Mr Hamzy has not sought to contradict, the existence of potential security concerns if more than one tub is located in his cell at any one time. It is not difficult to conceptualise the possibility that a large tub full of documents could theoretically conceal material to which a prisoner is not permitted to have access. Moreover, although the Commissioner does not appear in Mr Hamzy's case to rely heavily upon the idea that more than one tub of documents in his cell might present a fire hazard, in the sense that it could provide a source of easily combustible material, that issue would seem to have receded in significance for present purposes. [49] If this analysis is accurate, it is difficult to understand how the failure to provide a laptop with no internet capabilities, that is also able to store on its hard drive all of Mr Hamzy's legal documents that are currently stacked somewhat clumsily in plastic tubs, and which are already viewable using a USB does not realistically amount to a denial of access to the court process to Mr Hamzy in this case. Mr Hamzy, or any other prisoner in his position, undoubtedly requires that technology to run his case efficiently. That includes a laptop with writing and printing functions. At a time in our history when primary school pupils are utilising this technology in the classroom, it seems that the need for a degree of lateral thought in the custodial context may well have arrived. Nor can there be any concerns about resources as Mr Hamzy has offered to pay for this equipment himself. [50] In expressing these views, I am attempting objectively and dispassionately to conduct a careful review of the evidence and to scrutinise the Commissioner's concerns as closely as possible. However, the cases all acknowledge that prisoners are in a position of particular disadvantage. I am certainly not suggesting or implying that the Commissioner is abusing his power or authority and I am mindful of the exhortations to avoid becoming "enmeshed in the merits of particular decisions" (Brazel v Westin & Anor at [23] quoting Fyfe v State of South Australia [2000] SASC 84 at [18]). But taking account of the limitations that this Court faces when trying fully to understand and appreciate the security concerns that lie at the heart of the Commissioner's position, I am still left wondering how a fair balance can be struck if the laptop required by Mr Hamzy is not provided to him. [51] I am particularly mindful of the sentiments expressed by Lasry J in R v Rich (Ruling No 2) that it would obviously be very convenient for someone such as Mr Hamzy to have a laptop computer even though that is not the test. As his Honour observed, the relevant question asks if such a facility is "integral to the fair trial of the accused" or if "without a laptop computer his trial will be unfair". It seems to me that whether it be the Commissioner's action or inaction, Mr Hamzy is unquestionably precluded from having effective access to the court in this case without the laptop I have described. In so saying I wish again to emphasise that my concern, that Mr Hamzy's common law right to access to this Court should not be impeded, is not to be confused with a view that the Commissioner is actively impeding that access. It is simply a fact that without the technology that I have described, Mr Hamzy's access to this Court will be denied to him. In these circumstances I consider this Court should intervene to protect that right. Order [52] The precise framing of the order may require some further input from the parties. That is at least for three reasons. The first is that Mr Hamzy is to provide the laptop concerned. I am presently unaware of when that may occur. The second is that the Commissioner would have to be given the opportunity to vet the device that is to be provided in order to meet the minimum concerns that I have expressed and to be satisfied that it does not have any capabilities that illegitimately exceed those I have identified. The third is that the parties may wish to consider the implications, if any, of Mr Frommer's letter upon the practical implementation of my order. [53] The parties should therefore provide me with an agreed minute of the appropriate order, or competing versions if agreement cannot be reached, in either case within seven days."
I am satisfied that the Tribunal has jurisdiction under s 32(2)(a) of the NCAT Act to make an ancillary decision or an interlocutory decision to facilitate the exercise by Mr Karnauchow of his right to unimpeded access to the Tribunal to prosecute his appeal against the 19 December 2023 Decision.
I am satisfied that the findings and orders of Harrison CJ at CL in Hamzy at [39]-[52], and in particular the observations at [49], are applicable to the disposition of the 16 December 2024 Application. For the reasons given by His Honour, I do not regard one or both of Liristis and Clark as precluding the making of an order in favour of Mr Karnauchow on the 16 December 2024 Application. In view of this finding, it is unnecessary to consider the authorities relied on by Mr Karnauchow. I do not regard the provision of further time to Mr Karnauchow to comply with order 1 of the 23 February 2024 orders as an acceptable solution to the difficulties he is facing in preparing for the Appeal consistent with the guiding principle in s 36(1) of the NCAT as applied by s 36(2)(a) to the exercise of the power to extend time under s 41 of the NCAT Act. This Appeal has been on foot for nearly one year without any substantial progress being made by Mr Karnauchow in the necessary preparation for a hearing.
However, without some further input from the parties I am unable to frame an order disposing of the 16 December 2024 Application. I am not prepared to make the order sought in the 16 December 2024 Application because it would be uncertain as to how much additional out-of-cell computer access including during lock-ins is to be provided to Mr Karnauchow. In the absence of the agreement of the parties as to the terms of the order or orders, I will need the following evidence from the parties, preferably prior to the Call Over on 12 February 2025 at 9.30 AM: 1. evidence from Mr Karnauchow as to how much time he expects to require for completion of his evidence and submissions in support of the Appeal; 2. evidence from CSNSW as to what arrangements can be made to provide Mr Karnauchow with additional out-of-cell computer access including during lock-ins.
I note that the plaintiff in Hamzy offered to pay for a computer himself. It may well be that any logistical difficulties in the provision of additional out-of-cell computer access to Mr Karnauchow could be overcome if he provided his own computer.

Two additional issues requiring consideration

The following two additional issues require consideration: 1. the correct name of the respondent; 2. whether an order should be made under s 64 of the NCAT Act.

The correct name of the respondent

I am concerned that the respondent has not been correctly named in proceedings 2023/00190272 and this appeal. I note that in proceedings 2024/00206292 the Tribunal amended the name of the respondent from State of New South Wales (NSW Department of Communities and Justice) (Corrective Services) to State of NSW (Corrective Services NSW). I also that Commissioner for Corrective Services was the applicable party in each of Liristis, Clark and Hamzy. I further note that in Clark at [15]-[17] Basten JA found that the State of New South Wales should be removed as a party and the Commissioner for Corrective Services be added as the respondent. I require the Respondent to identify its correct name in proceedings 2023/00190272 and this appeal. At the Call Over on 12 February 2025 at 9.30 AM the Tribunal will consider whether an order should be made amending the name of the respondent in proceedings 2023/00190272 and this appeal.

Whether an order should be made under s 64 of the NCAT Act

I am concerned that an order under s 64 of the NCAT Act has not been made in this appeal and the making of the 8 March 2024 orders in proceedings 2023/00190272. At the Call Over on 12 February 2025 at 9.30 AM the Tribunal will consider whether an order in thew same terms as the 8 March 2024 orders is being sought by Mr Karnauchow, and if so such orders are consented to or opposed by CSNSW.

Orders

I make the following orders: 1. a hearing of the Application for miscellaneous matters lodged by the Appellant on 16 December 2024 is dispensed with; 2. the parties are to lodge an agreed form of order or orders with the Appeal Registry by 10 February 2025; 3. in the absence of the agreement of the parties as to the form of order or orders: 1. the Appellant is to lodge with the Appeal Registry and serve on the Respondent by 10 February 2025: 1. evidence as to how much time he expects to require for completion of his evidence and submissions in support of the Appeal; 2. any application for the making of orders under s 64 of the NCAT Act (which may be informal and indicate orders are sought in the same terms as the orders made on 8 March 2024 in proceedings 2023/00190272); 1. the Respondent is to lodge with the Appeal Registry and serve on the Appellant by 11 February 2025: 1. evidence as to what arrangements can be made to provide the Appellant with additional out-of-cell computer access including during lock-ins; 2. its submissions as to any application by the Appellant for the making of orders under s 64 of the NCAT Act; 3. its submissions as to the correct name of the Respondent; 1. the Respondent is to use its reasonable endeavours to provide the Appellant with this decision without delay including by personal delivery; 2. the Respondent is to use its reasonable endeavours to facilitate the Appellant lodging documents with the Appeal Registry in compliance with these orders.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2025

d: Custodial Operations Policy and Procedures, Corrective Services NSW Category: Procedural rulings Parties: Andreas Karnauchow (Appellant) State of NSW, NSW Department of Communities and Justice (Corrective Services) (Respondent) Representation: Appellant (Self-represented) M Naumovski (Senior Solicitor, NSW Communities and Justice) (Respondent) File Number(s): 2024/00051179 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2023] NSWCATAD 326 Date of Decision: 19 December 2023 Before: L Andelman, Senior Member Dr M Murray, General Member File Number(s): 2023/00190272

Proceedings 2024/00206292

On 4 June 2024, a complaint of Mr Karnauchow against CSNSW was referred by the Delegate of the President of the NSW Anti-Discrimination Board to the Tribunal pursuant to s 93A(1)(a) of the A-D Act. The complaint was that he had been discriminated against on the basis of disability in the area of goods and services between the period from 25 April 2023 to 28 February 2024 pursuant to ss 49B and 49M of the A-D Act, and had been victimised for events or conduct alleged to have occurred during the complaint period pursuant to s 50 of the A-D Act. The complaint became proceedings 2024/00206292.
On 3 October 2024, the Tribunal constituted by Senior Member L Andelman refused to grant leave to Mr Karnauchow to proceed to the Tribunal pursuant to s 96 of the A-D Act: Karnauchow v State of NSW (Corrective Services NSW) [2024] NSWCATAD 294 (the 3 October 2024 Decision). The Senior Member at [7]-[8] amended the name of the Respondent from State of New South Wales (NSW Department of Communities and Justice) (Corrective Services) to State of NSW (Corrective Services NSW).

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